Vol. 15 No.1 (January 2005), pp.64-67

CONSTITUTIONAL FAILURE: CARL SCHMITT IN WEIMAR, by Ellen Kennedy. Durham, NC: Duke University Press, 2004. 272pp. Paper. $22.95. ISBN:  0-8223-3243-4. Cloth. $79.95.  ISBN: 0-8223-3230-2.

Reviewed by John E. Finn, Department of Government, Wesleyan University.  Email: jfinn@wesleyan.edu .

Any comprehensive account of constitutional design and practice must address the conditions under which constitutional governments do not or cannot succeed. And more often than not, experiments in constitutional forms of governments do fall short, for reasons that are sometimes exotic, sometimes mundane.  For students of constitutional failure, the collapse of the Weimar Republic remains the paradigmatic case of constitutional crash.  Part of the enduring significance of Weimar is that it is so easy to find something in its short history to support just about any explanation of constitutional failure. So, on some accounts, the fall of the Weimar Republic is a function of flawed constitutional design. Here the culprit is the infamous Article 48, concerning emergency powers, or perhaps 48 in conjunction with Article 25 and the equal chance conception of party politics it seemed to promote. Other versions of the fall of Weimar point to larger failures of constitutional jurisprudence—a formalist, positivist jurisprudence unable to distinguish between legality and legitimacy, or between friend and foe, and unable to open questions about the legitimacy of the state, or of  conception of justice relevant to the relationship of power and authority in the state (Finn 1991).

Whatever the reasons for its fall, Weimar’s constitutional crisis was the occasion for a series of jurisprudential debates over the nature of democratic liberalism, constitutionalism, and modernity. Men like Hans Kelsen, Hugo Preuss, Richard Grau, Gerhard Anschutz, Johannes Popitz, and Carl Schmitt, all contributed to a jurisprudential dialogue in Weimar that addressed the most basic kinds of political and constitutional questions.

Of these, Carl Schmitt remains the most controversial, and perhaps the most puzzling figure, at least to American academics. Perhaps best known as the “crown jurist” for the Third Reich, Schmitt was arrested by the Russians in April 1945 and then let go. American forces re-arrested Schmitt in June of the same year, released him, and then arrested him again. Apparently the American authorities considered charges against Schmitt as late as 1947, but he was never prosecuted. His prominent association with the Nazi regime, however, was a significant blow to his career, and he never again held a formal academic appointment.

For a time, American constitutional lawyers shunned Schmitt in public, though they had no hesitation in drawing upon his work. Rossiter’s wonderful study of CONSTITUTIONAL DICTATORSHIP (1948), for example, shows a heavy influence, but the references to Schmitt are relatively few. [*65] Since his death in 1985, however, Schmitt’s work has attracted a fair amount of attention and generated an almost equal amount of controversy.

There is no doubt that Schmitt embraced the National Socialists when Hitler assumed the chancellorship.  There is likewise not much doubt that, before 1933, Schmitt was opposed to the Nazis, though he was not especially fond of the Weimar Republic.  The whys and the wherefores of this seeming about face have long been a focal point of the scholarship on Schmitt, and to a lesser extent a recurrent question in the literature on the collapse of the Weimar Republic more generally.

Ellen Kennedy’s CONSTITUTIONAL FAILURE: CARL SCHMITT IN WEIMAR, however, is not simply another contribution to the growing literature on Schmitt, or to the study of why Weimar fell. Instead, Kennedy engages Schmitt’s political thought directly. What results is a nuanced, sophisticated analysis of Schmitt’s political theory, and an analysis that seeks to connect, if not to reconcile, the sophistication of his political thought and his “accommodation” with the Nazi regime. Perhaps more importantly, though, and in partial answer to the question of why Schmitt’s work continues to garner attention, Kennedy’s examination of Schmitt’s political thought shows how the troubles of Weimar are the problems of contemporary constitutionalism. 

The central problem of Weimar, Kennedy argues, and to which most of Schmitt’s work was directed, was not a defect found in specific constitutional provisions and practices. Instead, it was a failure of “that substance informing the constitution of political unity; the institutions of the text did not cease to function in a technical fashion—they were evacuated of all meaning and significance” (p.178).  To study Schmitt, in other words, is to study and critique the nature and basis of liberal constitutionalism itself. “The fault lines of Weimar’s failure are those of all contemporary liberal democracies, fissures traced and sometimes exacerbated by Carl Schmitt” (p.187).

Kennedy traces Schmitt’s work essentially chronologically, beginning with an exceptionally useful examination of his early works, writings more literary than jurisprudential. In them, Kennedy demonstrates that Schmitt’s political thought was always concerned with the limits and faults of liberal democracy—in these early stories and satires, she argues, “Schmitt’s cultural critique and anti-liberal theory took shape” (p.43).

Subsequent chapters address Schmitt’s more mature and more influential works, including his theory of the state and his profoundly influential conception of norm and exception.  Readers not already familiar with Schmitt’s work may find some of this material rough terrain, but it is eased by Kennedy’s recurrent efforts to connect Schmitt’s writings with political action. As Kennedy notes, one of the defining characteristics of Schmitt’s thought, in stark contrast to much of the positivist, formalist jurisprudence of many of his contemporaries, was his insistence upon an approach that “set questions of public law within politics and history” (p.5).  More than any other treatment with which I am familiar, Kennedy’s work contextualizes Schmitt’s political theory. [*66]

It is, however, the two chapters on constitutional theory and constitutional failure that lift this book from an inquiry into Schmitt to a larger study of the nature and limits of liberal constitutionalism. In chapter five, Kennedy traces Schmitt’s work in the volatile period of 1929 to 1933, the “decisive years” for Weimar. Here Kennedy insightfully breaks down Schmitt’s definition and discussion of the meaning of democratic equality, showing how Schmitt’s distinction between democracy as procedure and substantive democracy might have concrete implications for constitutional understandings of such concepts as proportional representation, executive power, and Article 48. In tracing these out, Kennedy reopens the debate between Kelsen and Schmitt about who bore institutional responsibility for “constitutional defense,” a question that resonates among contemporary students of the German Basic Law, in particular, and for students of constitutional crises more broadly.

In chapter six, Kennedy takes up the processes of constitutional failure in Weimar directly. Kennedy’s examination of Schmitt’s role in that process again emphasizes the connections between Schmitt’s theory and his behavior. Consequently, Schmitt’s inquiry into the fault lines of Weimar was an inquiry into liberal democracy more generally.  What, then, were the fault lines of Weimar?  Legitimacy, Democracy, Representation, and “the general crisis of modern values in a disenchanted world” (p.90).  In the end, therefore, the chief fault lay in the failure of liberalism itself. “The weakness of its constitution came from the primacy of individual freedom and private interest, which worked against democratic unity” (p.187).  Kennedy continues by suggesting that the “confrontation between ‘Islamic’ fundamentalism and liberal democracy parallels the political ruptures that characterized Europe between the world wars” (p.187).

If there is anything that disappoints in CONSTITUTIONAL FAILURE, it is Kennedy’s failure to build on such comments. It is not immediately obvious, or at least it may not be so, especially to scholars not as expert in the history of Weimar, that the comparisons are valid or justifiable. Scholars of constitutional failure might have hoped for a more extensive comparison, as well as a push to grander theoretical ambition—more of Kennedy, and a little less of Kennedy on Schmitt.

The most intriguing part of the chapter, however, is Kennedy’s perceptive question: “What is living and what is dead, then, in the political theory of Carl Schmitt” (p.172)? The obvious answer is Schmitt’s work lives as the preeminent study of constitutional crisis, especially insofar as his work stands for the proposition—too often overlooked—that a written constitution is no guarantee of political or democratic unity, much less a guarantee of constitutional democracy itself. In LEGALITY AND LEGITIMACY (Schmitt, 1932), for example, he concluded, “the law cannot protect itself” (p.20). As Kennedy notes, for Schmitt, this meant first that the formal guarantees of a constitution cannot be independent of the political circumstances.

Perhaps less obviously, Kennedy concludes that Schmitt’s “singular [*67] achievement was to challenge more radically and effectively than any other thinker the tendency to abstraction in liberal political thought about the state” (p.183).  If the response is that it was the troubles of Weimar that made such a challenge seem like a political necessity, it is also worth remembering that it was Schmitt, and not Kelsen, that took up the challenge.

In conclusion, although the work is subtitled “Carl Schmitt in Weimar,” it would be a mistake to categorize CONSTITUTIONAL FAILURE as just another study of Schmitt’s political philosophy. Instead, following Schmitt’s own understanding of how to do philosophy, Kennedy situates his ideas in a much larger political and historical context, showing us how and why Schmitt’s work should be important to any student of constitutional government.

REFERENCES:

Bendersky, Joseph, 1983. CARL SCHMITT: THEORIST FOR THE REICH. Princeton: Princeton University Press.

Dyzenhaus, David (ed). 1998. LAW AS POLITICS: CARL SCHMITT’S CRITIQUE OF LIBERALISM. Durham, N.C.: Duke University Press.

Finn, John E. 1991. CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW.  Oxford: Oxford University Press.

Rossiter, Clinton.  1948. CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES. Princeton: Princeton University Press.

Schmitt, Carl.  2004. LEGALITY AND LEGITIMACY. (Translated and edited by Jeffrey Seitzer with an introduction by John P. McCormick). Durham: Duke University Press.

Schwab, George. 1989. THE CHALLENGE OF THE EXCEPTION: AN INTRODUCTION TO THE POLITICAL IDEAS OF CARL SCHMITT BETWEEN 1921 AND 1936. New York: Greenwood Press.

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© Copyright 2005 by the author, John E. Finn.